STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF COMMUNITY AFFAIRS, )

)

Petitioner, )

)

vs. ) CASE NO. 92-5583DRI

) KEN BOCKHAUT, Owner, SHOREMONT ) HOLIDAY HOMES, INC., General )

Contractor, and MONROE COUNTY, )

)

Respondents, )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Claude B. Arrington, held a formal hearing in the above-styled case on November 4 and 5, 1992, in Key West, Florida.

APPEARANCES

For Petitioner: Lucky T. Osho, Esquire

2740 Centerview Drive

Tallahassee, Florida 32399-2100

For Respondents, No Appearance Ken Bockhaut and

Shoremont Holiday Homes, Inc.:

For Respondent, No Appearance Monroe County:

STATEMENT OF THE ISSUES

Whether Building Permit No. 9210004560 issued by Monroe County, Florida, to Ken Bockhaut as owner and Shoremont Holiday Homes, Inc. as contractor for the construction of a dock as a structural accessory to a single family dwelling is contrary to the provisions of Chapter 380, Florida Statutes, the Monroe County Comprehensive Plan and the Monroe County Land Development Regulations.

PRELIMINARY STATEMENT

Petitioner timely filed its appeals to the Florida Land and Water Adjudicatory Commission challenging Monroe County's issuance of the subject building permit pursuant to Section 380.07, Florida Statutes. No evidence was presented by Respondents in support of the challenged permit. The area in which the proposed development would be constructed lies in an Area of Critical State Concern.

This case was consolidated for hearing with DOAH Case 92-1751DRI, DOAH Case No. 92-2958DRI, DOAH Case 92-3949DRI, DOAH Case No. 92-5582DRI, and DOAH Case

No. 5583DRI. At the conclusion of the formal hearing DOAH Case No. 92-2958DRI was severed because of the differences between the legal issues presented by this case and the other cases. Thereafter, this case, Case No. 92-5583DRI, was also severed because there was no evidence presented at the formal hearing in support of the permit.

A transcript of the proceedings has not been filed. At the request of the Petitioner, the time for filing post-hearing submissions was set for more than ten days following the conclusion of the hearing. Consequently, the requirement that a recommended order be rendered within thirty days after the transcript is filed was waived. Rule 60Q-2.031, Florida Administrative Code. No party filed a Proposed Recommended Order.

FINDINGS OF FACT

1. Petitioner is the state land planning agency charged with the responsibility to administer the provisions of Chapter 380, Florida Statutes, and the regulations promulgated thereunder. Petitioner has the authority to appeal to the Florida Land and Water Adjudicatory Commission any development order issued in an area of critical state concern. The appeal in the instant proceeding was timely.

   
   

2. No appearance was made by Respondents Ken Bockhaut or Shoremont Holiday Homes, Inc., and there was no evidence submitted in support of the permit that is the subject of this appeal.

   
   

   CONCLUSIONS OF LAW

   
   

3. The Division of Administrative Hearings has jurisdiction over this matter. Section 120.57(1), Florida Statutes.

   
   

4. The subject appeal was timely taken by Petitioner pursuant to Section 380.07(2), Florida Statutes. Pursuant to the provisions of Section 120.57(1), Florida Statutes, the propriety of Monroe County's action was reviewed de novo. Transgulf Pipeline Co. v. Board of County Commissioners of Gadsden County, 438 So.2d 876 (Fla. 1st DCA 1983).

   
   

5. Respondents Ken Bockhaut and Shoremont Holiday Homes, Inc. have the ultimate burden of persuasion to establish their entitlement to the permit authorizing their proposed development. Young v. Department of Community Affairs, 567 So.2d 2 (Fla. 1st DCA 1990), and Florida Department of Transportation v. J.W.C. Co., Inc., 396 So.2d 778 (Fla. 1st DCA 1981). The said Respondents failed to establish that they are entitled to the subject permit or that conditions could be attached to the permit that would enable the development to go forward.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is recommended that the Florida Land and Water Adjudicatory Commission enter a final order which sustains the appeal filed by the Department of Community Affairs and which rescinds building permit number 9210004560.

DONE AND ENTERED this 26th day of January, 1993, in Tallahassee, Leon County, Florida.

CLAUDE B. ARRINGTON

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 26th day of January, 1993.

COPIES FURNISHED:

Lucky T. Osho, Esquire Department of Community Affairs 2740 Centerview Drive

Tallahassee, Florida 32399-2100

Randy Ludacer, Esquire Monroe County Attorney

1. Fleming Street

   Key West, Florida 33040

   
   

   Ken Bockhaut

   H-17 Miriam Street

   Key West, Florida 33040

   
   

   Shoremont Holiday Homes, Inc. Post Office Box 1298

   Big Pine Key, Florida 33043

   
   

   William R. Kynoch, Deputy Director Florida Land and Water Adjudicatory

   Commission

   Executive Office of the Governor

2. Carlton Building Tallahassee, Florida 32301

Carolyn Dekle, Director

South Florida Regional Planning Council Suite 140

3400 Hollywood Boulevard

Hollywood, Florida 33021

Robert Herman

Monroe County Growth Management Division Public Service Building, Wing III

5825 Jr. College Road Stock Island

Key West, Florida 33040

Linda Loomis Shelley, Secretary Department of Community Affairs 2740 Centerview Drive

Tallahassee, Florida 32399-2100

G. Steven Pfeiffer, General Counsel Department of Community Affairs 2740 Centerview Drive

Tallahassee, Florida 32399-2100

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this recommended order. All agencies allow each party at least ten days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this recommended order. Any exceptions to this recommended order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 92-005583DRI

Orders for Case No: 92-005583DRI